Merchant Agreement
Effective: January 9, 2023
BY EXECUTING AN ORDER FORM AND MERCHANT APPLICATION AND/OR MASTER SERVICES AGREEMENT THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “AGREEMENT” OR “MERCHANT AGREEMENT”), BY PROVIDING PAYMENT FOR SOFTWARE OR HARDWARE OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY RAPID, INC. (“STOVE”), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PAYMENT PROCESSING TERMS, THE STOVE PRIVACY STATEMENT, THE STOVE TAKEOUT TERMS OF SERVICE, AND ALL OTHER TERMS, CONDITIONS, AND POLICIES PERTAINING TO THE SERVICES AS DESCRIBED HEREIN, ALL OF WHICH ARE INCORPORATED INTO THIS MERCHANT AGREEMENT BY REFERENCE (COLLECTIVELY, THE “ADDITIONAL TERMS”), AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES.
IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY OF THE ADDITIONAL TERMS, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY STOVE SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 18 (DEFINITIONS). WHERE APPLICABLE, CERTAIN REFERENCES TO STOVE MAY ALSO BE DEEMED TO INCLUDE STOVE’S BANK PARTNERS AND/OR PAYMENT PROVIDER(S), WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE TO MERCHANT. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS MERCHANT HAS AGAINST STOVE TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST STOVE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Merchant and STOVE hereby agree as follows:
1. Scope
The Agreement applies to and governs Merchant’s access to and use of the Services, Hardware, and Professional Services ordered by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees and Customers to place orders and process Payments; (b) processing of Payments and facilitating payment of Net Sales Proceeds to Merchant’s Bank Account; (c) providing Merchant with certain reporting on its sales and activities; and (d) working with Merchant with respect to any Customer inquiries related to Payments or placing orders, in each case under Merchant’s STOVE Account.
2. Right to Use the Services
2.1. Subject to Merchant’s compliance with the terms and conditions of the Agreement, STOVE grants to Merchant a limited, non-transferable (except in accordance with Section 17.4 below), non-sub-licensable, nonexclusive, revocable license during the Term to permit Employees to access and use the Services solely and exclusively for Merchant’s internal business purposes. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any license to use the Services in excess of the scope and duration of the license to the Services specified in the Agreement. This license does not grant to Merchant or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by STOVE to any third party, including without limitation any Intellectual Property Rights (as more fully described in Section 5.1 below).
2.2. Merchant is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and username(s) and access passwords to its STOVE Account; and (b) fully liable for all activity of its Employees and Customers that occur under its STOVE Account, whether authorized by Merchant or not. Merchant agrees to immediately notify STOVE if it becomes aware of any unauthorized activity under its STOVE Account and will cooperate with STOVE to prevent any further unauthorized activity. Furthermore, regarding Hardware being shipped to the Merchant, Merchant agrees that change of title and ownership, and risk of loss, shall transfer to Merchant at the point of shipment.
2.3. As part of the Services, STOVE may provide access to the STOVE Platform, including certain STOVE Apps. When Employees download or use the STOVE Platform or any Employee-facing STOVE App, Merchant must ensure its Employees read and agree to the End User License Agreement on their own behalf or on behalf of Merchant, as applicable, which protects STOVE’s rights in the Services and allows use of the applicable STOVE App only for the purposes of Merchant (including its Employees) accessing and using the Services in accordance with this Section 2 and Section 4 below. Merchants who elect to use STOVE Digital Ordering Services will be subjected to the STOVE Digital Ordering Terms.
2.4. As part of the Services, STOVE may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant’s use of the Services, Hardware or Professional Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to STOVE, STOVE is authorized to contact Merchant or Employees, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant.
3. Implementation and Professional Services
3.1. If Merchant orders any Professional Services under an Order, then, upon request from STOVE, Merchant will promptly provide STOVE with any information, resources and assistance required by STOVE to enable the implementation of the Services or ongoing provision of the Services for Merchant’s purposes as described on the Order and, if applicable, to provide training to the Employees. Any dates specified in an Order are estimates only and are contingent upon Merchant’s timely compliance with its obligations relative to such implementation and any dependencies on Merchant’s performance. If, and to the extent of, any default or breach on the part of STOVE under this Agreement that is caused in whole or in part as a result of Merchant’s failure to timely perform its obligations under this Agreement and/or any Order, then STOVE shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ prior written notice to Merchant. STOVE
may at its discretion, install both permanently and/or temporally any hardware regardless of what is ordered for the function of STOVE services. Any change in installed hardware does not constitute a breach of this agreement. STOVE may
also at its own discretion loan or provide alternate hardware to Merchant for its use of STOVE services which may be different than what was ordered by Merchant. Hardware that is loaned to Merchant is to remain the property of STOVE. If STOVE installs alternate hardware due to a manufacture delay or manufacturer defect or issue with hardware, software or services outside of STOVE’s control that does not constitute a breach of this agreement.
4. Usage Restrictions
4.1. Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with STOVE’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the STOVE Platform or other aspects of the Services); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the STOVE Platform or otherwise provided or made available to Merchant, including, without limitation, any action or inaction taken contrary to the requirements of PCI-DSS; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or STOVE’s network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user Platform.
4.2. Merchant represents, warrants and covenants that (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant to a Customer; (b) any sales transactions submitted by Merchant will accurately describe the goods and/or services sold and delivered to a Customer; (c) Merchant will fulfill all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (d) Merchant and all transactions initiated by Merchant will comply with Applicable Law and Rules; (e) except in the ordinary course of business, no sales transaction submitted by Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Merchant’s entity; (f) neither Merchant nor any of its Employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by Applicable Law and Rules, or this Agreement, or engage in the unauthorized use, transfer or disclosure of the same; (g) Merchant’s use of the Services will be in compliance with this Agreement; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. Except as otherwise permitted by STOVE in writing, the payment processing portion of the Services may only be used in the United States of America; provided, that STOVE reserves the right to restrict Merchant’s ability to accept certain Card payments in United States territories. As such, Merchant may not export or otherwise make available the payment processing portion of the Services directly or indirectly, outside of the United States of America, and Merchant acknowledges that the Services may be subject to export restrictions imposed by Applicable Law and Rules, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII). Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with Applicable Law and Rules.
4.3. Merchant will use the Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated third-parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Services to handle, process or transmit funds for any third party. Merchant is also prohibited from using the Services to process cash advances.
4.4. STOVE will review the information that Merchant submits via an Order Form, in connection with Merchant’s request to sign up for the Services, and STOVE will forward such information to its payment provider(s). Merchant hereby agrees that STOVE may share information about Merchant and Merchant’s Bank Account with its payment provider(s) for the purpose of providing the Services to Merchant or with other third parties for validation purposes. Once Merchant submits its Order Form, which includes the merchant application, STOVE or its payment provider(s) may conclude that Merchant is not permitted to use the Services, in which case STOVE may decide in its sole discretion to discontinue entering into an Agreement with Merchant, or if an Agreement has already been formed, may immediately terminate this Agreement. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify STOVE immediately of any changes thereto and authorizes and instructs STOVE to share any such changes with its payment provider(s).
4.5. Merchant will provide information requested by STOVE, in connection with Merchant’s application or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules or by STOVE’s payment provider(s)), including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also provide STOVE with access to inspect Merchant’s business location(s) upon request. Merchant, each of its then-current beneficial owners (i.e., persons who directly or indirectly have greater than a 25% ownership stake in Merchant), and its then-current designated control person (i.e., an individual having significant responsibility to control, manage or direct Merchant), each authorize STOVE to obtain–and will provide to STOVE upon request–identity-verifying information about Merchant, beneficial owners, and such designated control person from time to time, including documentation as necessary, consumer reports on Merchant and such beneficial owners and designated control person, including information relative to criminal history, or any other information necessary to comply with the requirements of the Bank Secrecy Act, as amended by the US PATRIOT Act of 2001, or as otherwise amended, modified, or replaced from time to time, as well as requirements of the Office of Foreign Assets Control.
4.6. STOVE may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. STOVE will not be liable for any such interruptions, delays, errors or bugs. STOVE may contact Merchant in order to assist STOVE with the Services and obtain information needed to identify and fix any errors.
4.7 Merchant may access the Services only through devices identified by STOVE as compatible with and capable of accessing or supporting the Services using a wired or wireless connection to the internet. The Services do not function with every device and may only be used on approved STOVE Hardware. STOVE may alter which devices are approved as compatible with the Services in STOVE’s discretion from time to time, subject to reasonable notice. Merchant is (a) solely responsible for the payment of any fees that may be imposed by its internet and/or data provider and (b) its use of the Services accessed via the internet is subject to the terms of any agreements in place with such internet and/or data provider and availability and uptime of those services and wireless equipment. STOVE does not warrant, endorse, guarantee, or assume responsibility or liability for any product or service advertised or offered by a third party.
4.8. Merchant will comply with the following requirements in connection with its use of the Services: (a) with respect to each Customer who requests the delivery of transaction receipts via text message or email, such Customer must individually enter his or her Customer Data in the appropriate space displayed on the applicable device; Merchant and/or Employees are NOT permitted to add or modify any Customer Data (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer; (b) any communications provided to Customers as part of the Services (e.g. marketing, enrollment in a loyalty program) who desire to receive marketing material, enroll in a loyalty program, or otherwise receive communications from Merchant as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required by applicable law; Merchant and/or Employees are NOT permitted to add or modify a Customer’s consent indication on his or her behalf unless specifically requested by Customer; (c) Merchant shall not send any communications, including transactional or commercial messages, to Customers in violation of Applicable Law and Rules, including without limitation the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and Canada’s anti spam legislation contained in An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced); (f) if Merchant is located in Canada and its loyalty program includes points used by guests to purchase goods or services from Merchant, Merchant may not terminate the points under such program by the passing of time alone unless the goods or services obtained through such points are, individually, worth less than $50 Canadian; (g) to the extent required by Applicable Law and Rules, if Merchant amends or terminates its loyalty program, Merchant will provide reasonable notice of such change or termination of its loyalty program to guests; and (h) to the extent required by Applicable Law and Rules, if Merchant terminates its loyalty program, Merchant will not reinstate its loyalty program within a year of such termination unless it has retained sufficient information to reinstate the points of any prior participant in its terminated program. Merchant agrees to send any communications, including transactional or commercial messages, to Customers in a manner consistent with the purposes for which the Customer has provided consent or has provided their information.
4.9. Merchant will abide by STOVE’s Community Philosophy. STOVE will not tolerate threats, harm, or intimidation tactics towards STOVEers – whether actual, veiled, or implied–including without limitation, derogatory or degrading language, threats, bullying, harassment, and/or intimidation.
4.10. Where applicable, Merchant will hold an active Software subscription license for all Hardware devices.
5. Ownership: Merchant Data, Customer Data & Intellectual Property
5.1. As between the parties, all STOVE (and/or its licensors) rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services, and Professional Services, including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of STOVE provided under the Agreement, is expressly intended to remain vested in STOVE (and/or its licensors). Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and, to the extent any such assignment cannot be made at present, will assign and transfer all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to STOVE, Inc., and acknowledges that STOVE is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in STOVE’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by STOVE.
5.2. Merchant owns all Merchant Data. Merchant hereby grants to STOVE a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services including the development of potential offerings or other future Services under consideration by STOVE (whether developed independently by STOVE or through a third party). Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Law and Rules) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by STOVE in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Section.
5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both STOVE and Merchant will collect, store and use Customer Data. To the extent Merchant’s use of the Customer Data is outside the scope described in this Agreement or within STOVE’s Privacy Statement, Merchant shall be solely responsible for putting in place any additional controls (e.g. notice, consent) and governance in relation to such use. Each Party’s use of Customer Data shall be in compliance with the Applicable Law and Rules.
5.4. Notwithstanding anything to the contrary in the Agreement, STOVE may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of your users or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across STOVE, our Merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Hardware or Services, the development of new Services or Hardware or otherwise. Upon creation, as between Merchant and STOVE, STOVE shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.
5.5. Merchant hereby grants STOVE a nonexclusive, royalty-free right and license to use and display Merchant’s Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Merchant as a customer of STOVE. STOVE obtains no rights in the Merchant Marks except for the limited right described in this sub-Section 5.5., and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by STOVE will inure to Merchant.
5.6. Merchant agrees and acknowledges that any use or display by Merchant of a trademark or other mark owned by the Payment Network(s) shall comply with the rules and regulations issued by such Payment Network and shall cease use of and remove all such trademark(s) from display upon termination of this Agreement.
6. Billing and Payment
6.1. Merchant will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Merchant will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
6.2. Merchant’s Software subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement and will be subject to an automatic increase of three percent (3%) at the beginning of each Renewal Term. STOVE reserves the right to change any other Fees and/or processing rates upon thirty (30) days’ prior written notice to Merchant. Such notice will include the effective date of the change(s). Merchant’s continued use of the Services subsequent to any change in Fees and/or processing rates, as applicable, will be deemed acceptance of such changes unless Merchant closes its STOVE Account prior to the effective date of such change and ceases all access to and use of the Services. If Merchant does not accept such Fee and/or rate change under this sub-Section 6.2, then Merchant may terminate this Agreement by providing STOVE written notice prior to the effective date of such Fee and/or rate change, and in such event the Early Termination Fee under sub-Section 8.4 shall not apply (other than the processing fee for Software financing), and Merchant shall only be liable to STOVE for the payment of Fees and/or rates for Services provided through the date of Merchant’s notice of termination.
6.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. In the event that STOVE inadvertently did not provide Merchant with an invoice, or Merchant did not otherwise receive an invoice from STOVE, Merchant is still responsible for paying any Fees and/or other amounts due based on Services provided. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month (or 19.56% annually) on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs. Such unpaid invoices, finance charges and expenses may be deducted from the deposit of any Net Sales Proceed under Section 5 of the Payment Processing Terms. Without prejudice to any right to set-off which STOVE may be entitled to as a matter of law, STOVE may set-off any amounts due to Merchant, including any Net Sales Proceeds, against any amounts owed or other liabilities of Merchant, now or at any time hereafter due, owing or incurred by Merchant to STOVE under this Agreement.
6.4. All Fees are exclusive of applicable Taxes, or similarly-related assessments or charges. Merchant will be responsible for, and agrees to pay, all applicable sales, use, excise, personal property, services, value added taxes, taxes of a similar nature, and final withholding taxes (excluding personal property and capital taxes on items owned and used by STOVE and excluding taxes based on STOVE’s net income all of which shall be borne by STOVE), imposed by any governmental authority having jurisdiction on any items, goods and/or Services being paid for by Merchant hereunder.
STOVE may charge Taxes, as required by law, which Merchant agrees to pay, unless Merchant provides STOVE with valid exemption documentation satisfying applicable legal requirements of the relevant tax authority. Tax exemption will only apply from and after the date Merchant provides exemption documentation satisfactory to STOVE. Taxes shall not be deducted from the payments to STOVE, except as required by law, in which case Merchant shall increase the amount payable as necessary so that after making all required deductions and withholdings, STOVE receives and retains (free from any Tax liability) an amount equal to the amount it would have had no such deductions or withholdings been made.
Merchant is responsible for determining and fulfilling its obligations under Applicable law and Rules to report, collect, and remit any applicable Taxes, duties, or other governmental fees on the sale of Merchant’s products and services, payments received, or any other transactions arising from or out of Merchant’s use of the Services. STOVE makes no representation or warranty that the Services, Hardware, or Professional Services will enable Merchant to meet the tax requirements applicable to Merchant in a specific jurisdiction. In certain jurisdictions, STOVE may be required to collect and remit state and local sales, use, or similar taxes from the Customer on behalf of Merchants and remit such taxes directly to the tax authority under state or local laws in Marketplace Facilitator Jurisdictions. In Marketplace Facilitator Jurisdictions, STOVE will inform Merchant that STOVE will remit any applicable taxes to the tax authority, to the extent required under the law, and STOVE will be relieved of any responsibility to remit such Taxes to Merchant. Any Taxes that STOVE is not required to collect and remit on behalf of Merchants in the Marketplace Facilitator Jurisdictions and non-Marketplace Facilitator Jurisdictions will remain the responsibility of the Merchant and Merchant will be responsible for remitting such Taxes to the appropriate tax authorities.
STOVE may be obligated under Applicable Law and Rules, including tax laws, to report Required Tax Reporting to tax authorities and/or with respect to Merchant’s use of the Services. Upon request, Merchant shall provide STOVE with the necessary information, or other reasonable assistance as appropriate to the request, so that STOVE can comply with all applicable tax compliance or reporting requirements. Merchant acknowledges that STOVE will report to the applicable tax and revenue authorities the Required Tax Reporting. Merchant agrees to cooperate in good faith in response to any tax authority inquiry, audit, controversy, and/or examination for purposes of substantiating and documenting Taxes collected and remitted pursuant to sales under this Agreement.
6.5. STOVE may report annually to the Internal Revenue Service and applicable state tax authorities as required by Applicable Law and Rules, Merchant’s name, address, telephone number, Tax Identification Number (including, but not limited to a Social Security Number (SSN), or Employer Identification Number (EIN)), applicable IRS account numbers, the total gross dollar amount of the Payments Merchant receives in a calendar year, and the total gross dollar amount of the Payments Merchant receives for each month in the applicable calendar year, without regard to adjustments for applicable credits, cash equivalents, discount amounts, fees, refunded amounts, or any other amounts, the dates of any transactions, designated merchant category codes, applicable backup withholding details. Such criteria and thresholds noted above may vary, depending on Applicable Law and Rules. Merchant further acknowledges and agrees that STOVE may take action in accordance with Applicable Law and Rules, including initiating backup withholding, when appropriate.
6.6. If Merchant financed its original license of the Software during the Initial Term, then upon the first Renewal Term and for each Renewal Term thereafter, Merchant’s payment terms for Software Fees shall revert to billed monthly in advance. If Merchant elects to finance Hardware through a third-party lender and, either (a) fails to consummate the financing transaction with such lender, or (b) due to Merchant’s default or any other purpose, STOVE purchases the related credit agreement from such lender, then Merchant’s payment terms shall revert to billed monthly in advance until the credit obligation has been paid in full or no further payments are due. In any event, STOVE shall collect monthly payments due via ACH debit from Merchant’s Bank Account.
6.7. If Merchant elects to purchase Services through a Pay-as-you-go Subscription, Merchant acknowledges that the Fee offered will constitute and be comprised of Software Subscription Fees and Card processing rates, except as otherwise disclosed in this Agreement or in other applicable terms. Pay-as-you-go subscriptions may be subject to an inactivity Fee, which will be assessed in the event Merchant fails to meet required Card processing minimums. Pay-as-you-go subscriptions do not constitute an offer of credit, nor do they constitute an equipment lease or loan for goods or services provided. Except as otherwise provided in this Agreement, or expressly stated in any other applicable terms, STOVE shall enforce Merchant’s liability for Pay-as-you-go Platform Fees consistent with sub-Section 6.3 herein, and shall not seek recourse against Hardware purchased in a Pay-as-you-go Order.
6.8. Merchant shall provide STOVE with a method of payment for debits (charges), and a method of receiving payments for credits (reimbursements), associated with Fees or other amounts owing for Services in a form acceptable to STOVE, which may include a bank account and/or a debit or credit card. Merchant authorizes STOVE to store bank account information and payment card information provided by Merchant for any use authorized by Merchant, as permitted by this Agreement, or as permitted by any other agreement as between Merchant and STOVE. You may update or cancel this authorization any time within STOVE systems or by contacting STOVE’s support team at STOVE Support located at tts.stovepos.com. This authorization will remain in effect until updated or canceled. The withdrawal of any authorization does not affect the validity of the storage or use by STOVE of bank account or payment card information prior to the withdrawal of the authorization.
7. Payment Processing
7.1. Payment Processing Terms are located at the link set forth in the Definitions Section.
8. Term and Termination; Suspension; Survival
8.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of this Agreement. The initial term of an Order will commence upon the earlier of: (i) the Contract Start Date (as defined in the Order Quote or Contract), or (ii) the Go- Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order, Quote or Contract (the “Initial Term”). If no term is set forth in said agreements then the term shall be for 36 months. Thereafter, the term of this Agreement with respect to such applicable order(s) shall automatically renew for successive one (1) year periods (each a “Renewal Term”; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”); provided, however, that any Renewal Term shall be subject to the terms of the then-current version of the Merchant Agreement as in effect on the date such Renewal Term commences and further provided that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent not to renew prior to the end of the then-current Term. Merchant hereby acknowledges and agrees that Merchant is responsible to review the Merchant Agreement for updates prior to the commencement of any such Renewal Term, and agrees that entering such Renewal Term confirms Merchant’s consent to the terms of the Merchant Agreement as then in effect.provided, however, that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent not to renew prior to the end of the then-current Term.
8.2. STOVE may suspend Merchant’s username and password, STOVE Account and access to the Services, and/or may terminate the Agreement upon written notice to Merchant in the event any of the following occur: (a) Merchant fails to make any payment due within thirty (30) days; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the STOVE Account registration requirements, as determined in STOVE’s sole discretion; (c) STOVE determines that Merchant is incurring excessive Chargebacks; (d) Merchant violates Sections 2, 4, 7 or 12; (e) any agreement between STOVE and a payment provider pursuant to which STOVE is authorized to provide access to payment processing services terminates or expires; (f) (1) STOVE determines in its discretion that any change to, clarification or interpretation by a regulatory authority or Payment Network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise have a material adverse effect upon the Services or a party, or pose unreasonable risk to STOVE or (2) STOVE is directed to terminate the Agreement or the Services by a regulatory authority, payment provider or a Payment Network or (g) for any reason upon ninety (90) days’ prior written notice to Merchant. As determined it its sole discretion, STOVE, its payment provider(s), and/or one or more Payment Network(s) may terminate this Agreement immediately and without notice for any suspected issues that could potentially cause a violation of this Agreement, the Payment Network rules, any law or regulation, or may impose a potential security threat, data breach, fraud or other crime, or damage to the Payment Network(s).
8.3. In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/or this Agreement for cause if such breach has not been cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach in reasonable detail and the remedy being sought. In the event Merchant terminates this Agreement due to STOVE’s uncured breach, Merchant shall be entitled to a pro rata refund of any Software Fees paid for Services not delivered as of the date of termination, to the extent such Software Fees have been paid in advance.
8.4. By executing an Order and/or STOVE Master Agreement, use of the STOVE POS or any STOVE provided interface, software or application, Merchant agrees to pay STOVE all Hardware and Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. Unless otherwise agreed to by STOVE, Merchant acknowledges and agrees that it may terminate this Agreement and any applicable Order(s) at any time during the Term, provided that Merchant shall remain responsible for payment of all Fees for Services provided by STOVE through the date of Termination. Additionally, Merchant shall incur and pay 1) an early termination fee equal to either i) the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, or ii) for a Pay-as-you-go subscription, one-hundred and fifty dollars ($150.00) multiplied by the number of months remaining in the then-applicable Term, as applicable (“Early Termination Fee”), and 2) any applicable processing fee related to Software financing. Merchant further agrees to pay as liquidated fees 1.00% of projected processing of credit cards, gift payments or other digital payment or total orders excluding cash payments for the duration of the remainder of term.
8.5. Upon any termination or expiration of an Order and/or this Agreement, Merchant’s right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all Sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following Sections: Section 18 (Definitions), Section 4 (Usage Restrictions), Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), rights to any payments of Fees or Net Sales Proceeds earned up to the date of termination, Section 9 (Disclaimer of Warranties), Section 10 (Limitation of Liability), Section 12 (Confidential Information), Section 14 (Arbitration), Section 15 (Notices) and Section 17 (General Provisions). Notwithstanding the foregoing, at Merchant’s request if received within thirty (30) days of termination of the Order or Agreement for any reason other than termination by STOVE for Merchant’s uncured material breach, to the extent Merchant is otherwise unable to access the information itself, STOVE will permit Merchant to access the Services solely and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data, Customer Data, and any other data, materials, and information collected by the Merchant as part of the Services and contained in Merchant’s STOVE Account. Subject to the Payment Processing Terms, Merchant acknowledges and agrees that STOVE has no obligation to retain Merchant Data and that STOVE will have the right to irretrievably delete and destroy Merchant Data after thirty (30) days following the termination of this Agreement. Merchant agrees it will continue to permit STOVE access to Merchant’s Bank Account until all amounts due under this Agreement are paid in full.
9. Representations; Disclaimer of Warranties
9.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
9.2. Merchant represents, warrants and covenants to STOVE that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (b) the name identified by Merchant when Merchant registered is its legal name or business name under which it sells goods and/or services; and (c) the taxpayer identification number identified by Merchant is its legal taxpayer identification number.
9.3. Limited Warranty and Return Policy. STOVE represents, warrants and covenants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by STOVE to Merchant, as the same may be updated by STOVE from time to time in the ordinary course of business (together the “Specifications”). Merchant’s sole and exclusive remedy for STOVE’s breach of this limited warranty is limited to STOVE correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 8.3 above. Any Hardware sold by STOVE to Merchant hereunder is covered by STOVE’s Limited Warranty Policy and STOVE, Inc. Return Policy available at https://www.stovepos.com/limited-warranty, which is hereby incorporated by reference and made part of this Agreement.
9.4. STOVE does not warrant that the Services, which may permit Merchant to process payments or use the Services on a compatible third-party device, will be compatible with all third-party devices or carriers. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its third-party device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Merchant is solely liable for the payment of all such carrier fees.All third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by such manufacturer who is solely responsible for service and support for its hardware product. For service, support, or warranty assistance, Merchant will contact the manufacturer directly.
9.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, STOVE AND ITS THIRD- PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. STOVE AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STOVE AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS. MERCHANT ACKNOWLEDGES THAT NEITHER STOVE NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. STOVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, STOVE DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY STOVE, THE SERVICES ARE PROVIDED TO MERCHANT ON AN “AS IS” BASIS.
10. Limitation of Liability
10.1. IN NO EVENT WILL STOVE BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF STOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, STOVE’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO STOVE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
11. Indemnification
11.1. STOVE Indemnification. STOVE will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party, and STOVE will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against Merchant by a court of competent jurisdiction as a result of any such claim or payable by Merchant pursuant to a settlement agreement to which STOVE agrees in writing in settlement of such claim; provided, that Merchant (a) promptly gives written notice of the claim to STOVE; (b) gives STOVE sole control of the defense and settlement of the claim; and (c) provides to STOVE, at STOVE’s cost, all reasonable assistance. If the Services become, or in STOVE’s opinion are likely to become, the subject of an infringement or misappropriation claim, STOVE may, at its option and expense, either (i) procure for Merchant the right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to Merchant the portion of subscription fees paid in advance by Merchant for any unused portion of the then-current term of the Services, if any, whereupon STOVE may terminate this Agreement upon written notice to Merchant. Notwithstanding the foregoing, this Section 11.1 shall not apply to any infringement or misappropriation claims arising from (i) designs, specifications, or modifications originated or requested by Merchant, (ii) the combination of the Hardware, Software, and/or Services with other equipment, software or products not supplied by STOVE if such infringement or misappropriation would not have occurred but for such combination, (iii) Merchant’s failure to install an update provided by STOVE at no additional charge, where same would have avoided or mitigated such claim, (iv) allegations of infringement made by a non-practicing entity, (v) the failure of Merchant to follow any instructions given by STOVE to Merchant in relation to such claim, suit, action, or proceeding brought against Merchant, where the instruction would have avoided or mitigated the same, or (vi) any claims that are attributable to Merchant’s gross negligence or willful misconduct. This Section 11.1 represents the sole and exclusive remedy of Merchant and the entire liability and obligation of STOVE with respect to infringement and misappropriation.
11.2. Merchant Indemnification. Merchant will indemnify, defend and hold harmless STOVE and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities, fines, fees, costs, expenses or other amounts whatsoever imposed or assessed by the Payment Networks, regulatory authorities or other third parties to the extent permitted under Applicable Law and Rules, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by STOVE, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of (a) Merchant’s use of the Services, other than those attributable to STOVE’s gross negligence or willful misconduct, or for which STOVE is responsible as set forth in Section 11.1 above, (b) STOVE’s processing activities on behalf of Merchant, (c) Merchant’s, or any Employees’, breach or nonperformance of any provision of this Agreement; (d) any Tax assessment or (e) any claims against STOVE related to the use by STOVE of any Merchant Data or any of Merchant’s intellectual property.
12. Confidential Information
12.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business under this Agreement. For the avoidance of doubt, STOVE’s Confidential Information includes the Services, Hardware, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted in Section 5, Section 7 or under the Privacy Statement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (v) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (w) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (x) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (y) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.
12.2. Notwithstanding any provision of this Agreement to the contrary, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its Representatives or potential Representatives who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential, consistent with the terms of this Agreement; (ii) as required by law (in which case Merchant shall, if permitted by Applicable Law and Rules, provide STOVE with prior written notification thereof and the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure in each case to the extent permitted by applicable law, or (iii) otherwise in accordance with STOVE’s Privacy Statement. The Receiving Party will remain primarily responsible for any breach of this Section 12 by any of its Representatives with whom it shares the other party’s Confidential Information as permitted by this Section 12.2.
13. Data Privacy & Security
13.1. The parties acknowledge that the Personal Information of Merchant, Merchant’s Employees and Customers will be Processed as part of the Services. For the purposes of any Personal Information Processed under this Agreement, the terms of the Merchant Data Processing Addendum found at https://www.stovepos.com/privacy/merchantdpa shall apply. The Merchant Data Processing Addendum forms part of and is incorporated into this Agreement by reference.
13.2. For certain Services, STOVE will act as a Processor and will Process Personal Information on your behalf. For example, STOVE Processes (i) the Personal Information of Merchant Employees in connection with Services that relate to the management and administration of Employees on behalf of the Merchant, and (ii) the Personal Information of guests in connection with certain Services that allow the Merchant to communicate with and provide offerings directly to their Customers, including loyalty, gift card and marketing products. Additional details on each party’s obligations can be found in the Merchant Data Processing Addendum.
13.3. Each Party is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with its respective obligations under the Agreement and the provision of the Services. For the avoidance of doubt, this includes access controls and ensuring that Personal Information or other data collected as part of the Services is not improperly disclosed. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the Applicable Data Protection Laws.
13.4. If either Party (whether directly or through a third party) discovers or becomes aware of a Security Incident, the discovering Party shall promptly notify the other Party and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of the Agreement as well as cooperation with the investigation of the Security Incident. To the extent any Security Incident is attributable to the acts or omissions of the Merchant, Merchant shall bear all costs associated with remedying the Security Incident and complying with its legal obligations under the Applicable Data Protection Laws.
13.5. As part of this Agreement, STOVE shall, with reasonable notice, have the right to perform an audit of Merchant’s facilities, systems and personnel to verify Merchant’s compliance with this Section if it has a reasonable suspicion of a breach or potential breach of the terms of this Agreement. Merchant will provide full cooperation to STOVE and its Representatives in connection with any such audit.
14. Arbitration
14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Except where prohibited by Applicable Law and Rules, Merchant agrees that any and all disputes or claims that have arisen or may arise between Merchant and STOVE, whether arising out of or relating to this Agreement or in connection with Merchant’s use of the Services or our websites, shall be resolved exclusively through confidential, final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Merchant may assert individual claims in small claims court, if Merchant’s claims qualify. Merchant agrees that, by agreeing to this Agreement, Merchant and STOVE are each waiving the right to a trial by jury or to participate in a class action. Merchant’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement. In any event, any action or proceeding by Merchant against STOVE relating to any dispute must commence within one year after the cause of action accrues.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, Merchant and STOVE agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and STOVE agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
14.3. Pre-Arbitration Dispute Resolution. STOVE is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by contacting STOVE’s support team at STOVE Central located at support.stovepos.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to STOVE should be sent to STOVE at 500 La Terraza Blvd., Escondido, CA 92025, Attn: General Counsel. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If STOVE and Merchant do not resolve the claim or dispute, despite good faith attempts, within sixty (60) calendar days after the Notice is received, Merchant or STOVE may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by STOVE or Merchant shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Merchant or STOVE is entitled.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless STOVE and Merchant agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Merchant’s claim is for $25,000 or less, STOVE agrees that Merchant may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic or video conference hearing, or if directed by the arbitrator, by an in-person hearing, as established by the AAA Rules. If Merchant’s claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules. Merchant will be responsible for any and all fees, costs of attorneys, to include the cost of arbitration and any fees for collection of monies or property including hardware. Merchant is solely responsible for STOVE’s attorney fees in enforcing this agreement regardless of the prevailing party. If Merchant is the prevailing party STOVE is not liable for any fees including both from Merchant, Merchant’s legal fees or those of STOVE’s legal or enforcement costs.
14.6. Confidentiality. Except as may be required by law, all aspects of the arbitration proceeding (including its existence), and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
14.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 14.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 14.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
15. Notices
Except as provided in the Arbitration Agreement, STOVE may give notice applicable to STOVE’s general customer base by means of a general notice on the Services portal, and notices specific to Merchant by e-mail to Merchant’s address on record in Merchant’s STOVE Account. Notices to STOVE must be sent via registered mail, postage prepaid, return receipt requested, to Rapid, Inc., 500 La Terraza Blvd, Suite 150, Escondido, CA 92025, Attn: General Counsel.
16. Force Majeure
Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
17. General Provisions
17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the State of California, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. Except as set forth in Section 14, the parties agree that the federal or state courts in the city of San Diego, California shall have exclusive jurisdiction to hear and determine any dispute between them. The Uniform Computer Information Transactions Act, and the United Nations Convention on the International Sale of Goods, shall not apply to this Agreement.
17.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement, except that STOVE may modify this Agreement to comply with, and as a result of, amendments to Applicable Laws and Rules. The Section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between STOVE and Merchant as a result of this Agreement or use of the Services.
17.3. Entire Agreement. This Agreement and all Order(s), Quotes or Agreements together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties’ entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-STOVE ordering document, and no terms included in any such purchase order or other non-STOVE ordering document will apply to the Services or Hardware. The exchange of a fully-executed Order by fax or electronic signature will be sufficient to bind the parties to the Merchant Agreement and such Order. Except as otherwise provided herein, this Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.
17.4. Assignment. Merchant may not assign this Agreement without the prior written approval of STOVE, such approval not to be unreasonably withheld or delayed,. Any purported assignment in violation of this Section 17.4 will be null and void and without force or effect. STOVE may at its sole discretion assign this agreement to any change in ownership, venue, location or brand. Any change in ownership, location, venue or brand; this agreement will automatically transfer to new ownership, venue, location or brand in full unless otherwise modified by STOVE solely.
17.5. Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
17.6. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with this Agreement.
18. Definitions
“Agreement” means collectively: (i) this Merchant Agreement, (ii) the STOVE Master Agreement (only if applicable), (iii) any Order(s) signed by the Merchant, (iv) the End User License Agreement, (v) STOVE’s Limited Warranty, (vi) STOVE TakeOut Terms of Service (only if applicable), (vii) the Privacy Statement, (viii) the Payment Processing Terms, and any other exhibit, addendum, schedule, or attachment to any of the foregoing that is incorporated by reference therein or herein.
“Applicable Data Protection Laws” means all applicable federal, state, provincial, regional and local laws, directives, regulations, and rules imposed by any government, agency or authority in relation to the processing and security of Personal Information, including, but not limited, to the GDPR, the EU Directive on Privacy and Electronic Communications 2002/58/EC (“PECR”), the data protection law of the United Kingdom, including but not limited to the Data Protection Act 2018 (“UK GDPR”), Switzerland’s Federal Data Protection Act of 19 June 1992, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), as well as any applicable provincial legislation, the CCPA as amended, replaced or superseded from time to time and Virginia’s Consumer Data Protection Act.
“Applicable Law and Rules” means all federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Merchant and/or Merchant’s business, including without limitation, any applicable tax laws and regulations, the requirements of the Bank Secrecy Act as amended by the USA Patriot Act (or similar law, rule or regulation), the requirements of the Office of Foreign Assets Control, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the Operating Regulations. For the purposes of this Agreement, Applicable Laws and Rules includes Applicable Data Protection Laws.
Merchant shall refer to the following for applicable PCI-DSS and Payment Network requirements, as may be updated from time to time:
PCI-DSS: www.pcisecuritystandards.org
Visa’s CISP program: https://www.visa.com/cisp
Mastercard’s SDP program: https://www.mastercard.com/sdp
Discover’s DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html
American Express’ website: https://www.americanexpress.com/us/merchant/merchant-regulations.html
“Card(s)” means most U.S.-issued, and most non-U.S. issued, credit and debit cards with a Visa, Mastercard, Discover or American Express logo, and/or any other card types, if applicable, of which STOVE reserves the right to add or remove at any time in its sole discretion.
“Chargeback” means a transaction that is reversed or charged back to Merchant’s Bank Account if the transaction: (a) is disputed; (b) is reversed for any reason by one or more Payment Network(s), STOVE’s processor, a Customer, or STOVE’s financial institution; (c) was not authorized; or (d) is unlawful, suspicious or in violation of the terms or conditions of the Agreement.
“Community Philosophy” means STOVE’s Community Philosophy framework of expectations for conduct for interactions between STOVE employees and customers, partners, vendors, etc. and process for addressing conduct that does not align with our standards and values.
“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.
“Customers” refers to Merchant’s customers or guests.
“Customer Data” means data and information, which may include Personal Information, collected by STOVE via the Services, such as when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Card information; (iv) Customer purchase history; and (v) location information.
“Effective Date” means the date of last signature of an Order Form or STOVE Master Agreement, as applicable.
“Employees” means Merchant’s employees, agents and contractors who are authorized to use the Services.
“End User License Agreement” or “EULA” means the additional terms of service applicable to Merchant’s and its Employees’ use of the Services, including without limitation, the STOVE App, available at https://www.stovepos.com/end-user-license-agreement.
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.
“Fees” means any fees outlined in an Order, including without limitation, fees for Software, Hardware and Professional Services, and amounts in respect of Card processing rates.
“Force Majeure Event” has the meaning ascribed to it in Section 16.
“Go-Live Date” means the actual date upon which Merchant begins using the Services and is capable of processing Payments in a live production environment (if applicable).
“Hardware” means any terminal, tablet, kitchen display screen (“KDS”), switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by STOVE, and purchased under an Order.
“Location(s)” means the actual number of locations for which Merchant is agreeing to purchase and/or license, as applicable, the STOVE Hardware, Services and/or Professional Services, as reflected in an Order.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
“Marketplace Facilitator Jurisdiction“ means a state or local jurisdiction where STOVE may be required to collect and remit Taxes from the Customer on behalf of Merchant and remit such taxes directly to the tax authority.
“Merchant” means the contracting entity listed on the applicable Order Form or STOVE Master Agreement, as applicable.
“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Hardware and Services and/or collected by STOVE, including without limitation Merchant’s name, address, contact information, Employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details and other information or material submitted by Merchant to STOVE through the Services, excluding Customer Data. Merchant data may include Personal Information, whether from Merchant’s Employees, existing customer information or otherwise.
“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to STOVE for use with the Services.
“Merchant’s Bank Account” means the bank account (or accounts) designated by Merchant on the Order for the facilitation of transactions, settlement of Net Sales Proceeds and/or payment of Fees hereunder.
“Net Sales Proceeds” means funds remitted by STOVE to Merchant resulting from Payments, less all applicable Fees due and owing relative to the applicable transaction.
“Off-Line Mode” shall have the meaning provided in the Payment Processing Terms.
“Operations Regulations” means the collective body of Card brand and payment network by-laws, operating requirements and/or all other rules, policies and procedures, as each may be amended or supplemented from time to time, including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, the Mastercard Click to Pay Terms and Conditions, and any other program or requirement that may be published and/or mandated by a Card brand or payment network.
“Order” or “Order Form” means any STOVE ordering document (including any online order) specifying the Services, Hardware and Professional Services purchased and/or licensed hereunder, as mutually agreed to and accepted by STOVE. The Order may also contain the merchant application and related data.
“Pay-as-you-go Subscription” means an agreement to purchase STOVE Services where the Merchant agrees to pay a Platform Fee based on usage of the Services, as well as any other applicable Fees as may be disclosed to the Merchant.
“Payment Network” means American Express Travel Related Services Company, Inc. (“American Express”), DFS Services, LLC (“Discover”), Mastercard International Inc. (“Mastercard”), China UnionPay Co. Ltd., and/or Visa Inc. (“Visa”), and/or any other payment networks that STOVE may utilize in its sole discretion.
“Payment Processing Terms” or “Payment Terms” means the then-current version of the processing terms and conditions available at https://www.stovepos.com/payment-processing-terms.
“Payments” means a Card payment made to Merchant by a Customer.
“Personal Information” means any information relating to an identified or identifiable individual or household. Personal Information may include, but is not limited to, a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses, and location-based information, but excludes aggregated or anonymized information. Personal Information shall include any information that constitutes “personal information” or “personal data” under the Applicable Data Protection Laws.
“Privacy Statement” means the then-current version of STOVE’s Privacy Statement available at https://www.stovepos.com/privacy.
“Process” or “Processing” means any operation or set of operations performed on Personal Information or sets of Personal Information, whether or not by automated means, including, but not limited to, the collection, recording, access, organization, structuring, storage, use, adaption, alteration, retrieval, disclosure, restriction, deletion or destruction of Personal Information.
“Processor” means the entity which processes Personal Information on behalf of a Controller. For the purposes of this Agreement, “Controller” includes similarly defined terms under the Applicable Data Protection Laws, including, but not limited to, a “service provider” or “contractor”.
“Professional Services” means any implementation services and/or training provided by STOVE to Merchant pursuant to an Order.
“Representatives” means a party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), contractors and third-party service providers.
“Required Tax Reporting“ means information that STOVE is required to provide to certain tax authorities under Applicable Law and Rules.
“Reserve” or “Reserve Account” means an amount of Merchant funds designated by STOVE and/or its payment providers that must be held and maintained by STOVE and/or its payment providers, or by Merchant if directed by STOVE, in order to protect STOVE from risks related to Merchant’s acts or omissions as more fully described in Section 8 of the Payment Processing Terms.
“Security Incident” means any accidental or unlawful destruction, loss, alteration, theft, unauthorized disclosure of, or access to, Personal Information.
“Services” means STOVE’s websites, Software, the STOVE Platform, STOVE Apps, supported integrations with third parties, customer support, and the Payment Processing services described under Section 7 (Payment Processing) of this Agreement or any other current or future services offered by STOVE.
“Software” means STOVE’s point-of-sale restaurant, hospitality and retail management system made available to Merchant via the STOVE Platform, including both online and offline components, products, services, features, content, and updates related thereto.
“Specifications” means the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by STOVE to Merchant.
“Taxes” means taxes, levies, or duties imposed by taxing authorities.
“Term” shall have the meaning provided in Section 8.1.
“STOVE Account” means Merchant’s account with STOVE.
“STOVE Platform” means STOVE’s online and offline Software either installed on Hardware, or made available for download by Merchant online, that enables Employees and Customers to interface with, access and use the Services.
“STOVE Apps” means, collectively, mobile applications made available by STOVE as part of the STOVE Services, for download by Merchants, Employees or Customers, as applicable, that enable Merchants, Employees and Customers to interact with, access and use the Services.
“STOVE Limited Warranty” means the limited warranty for Hardware and Software extended to Merchant by STOVE, and available at https://www.stovepos.com/limited-warranty.
“STOVE Master Agreement” means a master services agreement that STOVE may enter into with select merchants that contains certain terms, conditions, and/or fees or other arrangements agreed upon by a particular merchant and STOVE. This agreement includes terms listed on documents STOVE Quote and/or STOVE Contract.
“STOVE Digital Ordering Terms” means the terms and conditions governing the STOVE Apps and associated website, software, and other products and services provided by STOVE to enable guests to make Purchases from Merchant (collectively, “STOVE Digital Ordering Services”), which are available at https://www.stovepos.com/stove-digital-ordering-terms.